Lewd Acts with a Child
California Penal Code 288
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Penal Code 288 PC is a crime committed by touching a child on his/her body for sexual purposes.1 Justice officials sometimes refer to this "sexual assault" offense as "lewd acts on a minor under 14" or "acts of lewd or lascivious conduct." These cases often involve accusations that the child was touched or fondled on a sexual organ, or that some overt act of child molestation took place.
Unfortunately, many people are falsely accused of this very serious offense. False accusations can cause irreparable harm to one's reputation, career, and family life. The good news is that skilled California sex crimes defense lawyers know the most effective strategies to expose false allegations...and to vindicate their clients.
In order to better understand exactly how Penal Code 288 PC is prosecuted...and, more importantly, defended...our Los Angeles "lewd acts with a minor" defense attorneys will address the following:
Overview of Penal Code 288 PC
Lewd Acts with a Child
How Do Prosecutors Prove that I am Guilty of Engaging in Lewd Acts with a Minor?
What Can I Do if I'm Falsely Accused of Engaging in Lewd Acts with a Child?
How Do I Defend Against a "Lewd Acts with a Minor" Charge?
Penalties, Punishment, and Sentencing for Penal Code 288 PC
"Lewd Acts with a Minor" and the Duty to Register as a Sex Offender
Penal Code 288 PC and Related Offenses
If, after reading this article, you have additional questions, we invite you to contact our California sex crimes defense lawyers.
You may also find helpful information in our related articles on Penal Code 261.5 Statutory Rape, Penal Code 243.4 Sexual Battery, Penal Code 288.2 Harmful Matter Sent with the Intent of Seduction of Minor, California Child Pornography Laws, and Penal Code 290 Registration as a Sex Offender.
Overview of Penal Code 288 PC
Lewd Acts with a Child
California Penal Code 288 PC is a broadly defined crime. Included within this offense are
1.lewd acts with a minor, and
2.lewd acts performed by a caretaker upon a dependant person.2
Because the most serious of the California Penal Code 288 laws involves lewd conduct with a child under 14 years old, it is the one on which this article will focus.
This offense involves touching the child or minor anywhere on the body...even on the outside of the clothing...if the touching is done "with the intent of arousing, appealing to, or gratifying the lust, passions or sexual desires of you or the child."3
Let's look at an example.
Suppose 40-year-old Richard hugs his 6-year-old niece and kisses her on the cheek. He does this because it causes him sexual arousal. We might acknowledge that Richard has a "problem" for being sexually attracted to a young child. But we would hardly consider his actions to amount to "child molestation."
Practically speaking, this behavior would probably not be prosecuted...even if it could be proven. Yet the behavior falls within the formal definition of Penal Code 288 PC. That is, he touched the child on her body for sexual arousal.
The example shows just how broadly "lewd acts with a child" is defined.
There actually haven't been that many substantive changes throughout the years since California's "lewd acts with a minor" law was first enacted in 1901. It's the potential prison sentence that has received the most revision.
In 1937, the offense called for a prison sentence of "one year to life." Then in 1976, the statute was amended to reduce the potential "life sentence" to a prison sentence of three, four, or five years. In 1978, the maximum sentence was increased to three, five, or seven years. Finally, in 1981 the code was amended to reflect today's penalty...a three, six, or eight year state prison sentence.4
How Do Prosecutors Prove that I am Guilty of Engaging in Lewd Acts with a Minor?
In order to convict you of engaging in lewd acts with a minor, the prosecutor must prove the following facts (otherwise known as "elements of the crime"):5
1.that you willfully touched any part of a child's body or that you willfully caused a child to touch his/her own body, your body, or another person's body, and
2.that you did so with the intent of arousing, appealing to, or gratifying the lust, passion, or sexual desires of you or the child.
The age of the child additionally becomes relevant for sentencing purposes (which is discussed under Penalties, Punishment, and Sentencing for Penal Code 288 PC below).
Let's take a closer look at some of these terms and phrases to better understand these elements.
Willfully
You willfully commit an act if you do so deliberately or on purpose. It is not required that you intend to (1) break a law, (2) harm another person, or (3) gain any advantage.6
Touch
To "touch" any part of a child's body...or to have a child touch his/her or anyone else's body...means
1.to touch bare skin, or
2.to touch the person's body through his/her clothing.
It is important to note that even if you don't touch the child in a lewd or sexual manner, prosecutor's can still convict you of this charge.7
Referring to the example above, Richard simply hugged and kissed his niece on the cheek. Neither of those acts is considered "lewd or sexual," yet because he willfully performed those acts intending to arouse himself, he is technically guilty of Penal Code 288 PC California's "lewd acts with a child" law.
With the "intent" of arousing...
With respect to arousing or gratifying sexual desires, it isn't necessary for the prosecution to prove that you or the child were actually aroused. The prosecutor must only prove that you intended to satisfy sexual desires.
Fortunately, it can be difficult to prove intent...especially if the "touch" wasn't an overtly sexual act. This is frequently a weakness in the prosecution's case...and one which a California sex crimes defense attorney can exploit.
What Can I Do if I'm Falsely Accused of Engaging in Lewd Acts with a Child?
False accusations of child sexual abuse occur often. Evidence suggests that many innocent adults have been arrested, prosecuted...and sadly, convicted...for alleged child molestation that never happened. Moreover, a California Penal Code 288 wrongful conviction can
land an innocent person in the California State Prison,
force him/her to become a registered sex offender for life, and
ruin his career and reputation.
When a child makes an allegation of acts of lewd or lascivious conduct, police and prosecutors have a tendency to accept the child's word uncritically. The focus goes to building a criminal case against the accused, rather than scrutinizing the credibility of the accuser.
Children make up false sexual abuse accusations for a variety of reasons. Sometimes a child doesn't like a new step-parent and wants to get the unwelcome adult figure out of the home. Sometimes during a divorce or custody battle, one parent's subtle suggestions will induce a child into making false accusations of lewd acts against the other parent.
If you have been falsely accused of engaging in lewd acts with a minor...or even suspect that someone may accuse you of this offense...it is critical that you immediately consult with a California criminal defense attorney.
An experienced criminal defense attorney will team up with a private investigator. Working together, they can do wonders in fighting a wrongful accusation of Penal Code 288 PC "child molestation."
The defense team will do its best to locate evidence that corroborates your side of the story and that contradicts the accuser's allegations of lewd or lascivious conduct. This may consist of
forensic evidence,
witness statements,
emails,
texts, and
phone records.
And if the attorney gets involved early enough...even before formal charges are filed...he/she can sometimes dissuade the prosecutor from pursuing the case to begin with. Failing that, your California "lewd acts with a child" defense lawyer will prepare the case for trial to convince the jury to return a "Not Guilty" verdict.
How Do I Defend Against a "Lewd Acts with a Minor" Charge?
Generally, the most important part of the defense investigation is examining the credibility of the accuser. Your attorney will want to
1.subpoena the accuser's school, counseling, and medical records,
2.interview his/her family, friends, schoolmates, and those she chats with online, and
3.conduct a thorough background check on the accuser and any alleged witnesses.
As San Bernardino criminal defense attorney Michael Scafiddi explains,8 "Quite often, investigations reveal that the accuser has a bias and motive to harm the accused and that the accuser has a history of being untruthful and telling lies about other people as well."
But don't despair. There are a variety of defenses that your California criminal defense lawyer can present on your behalf. Below is a sample of some of the most common.
The "touch" was accidental
In order for prosecutors to convict you of "lewd acts with a minor," you must (1) willfully touch a minor, or (2) willfully cause the minor to touch you, him/herself, or another person.
Even if the alleged "touch" was upon a female breast, or other sexual organ, if it was an accidental encounter, you are not guilty of this charge.
Lack of criminal intent
If you didn't intend to sexually arouse or gratify yourself...or the minor who was involved in the alleged activity...you did not engage in child molestation. As previously stated, if (1) you didn't "touch" the minor in an obviously sexual manner, it will be difficult for the prosecutor to prove that you intended to sexually arouse yourself or the child.
The minor was older than 15 and less than ten years younger than you
There are two types of child molestation prohibited by California Penal Code 288 PC:
1.engaging in a lewd act with a child under 14, and
2.engaging in a lewd act with a minor who is 14 or 15 and who is at least ten years younger than you.
This means that if the minor in question is either (1) 14 or 15 years old and less than ten years younger than you, or (2) is older than 15, prosecutors can't convict you of engaging in lewd acts with a child.
With respect to the age of the minor, there are two important facts to note. The first is that unlike a Penal Code 261 PC "statutory rape" charge,9 a mistaken belief in the minor's age is not a defense to this charge.10
The second is the fact that even if the minor appeared to "consent" to the alleged activity, you will still be held criminally liable for the offense.11 This is because...under California law...minors are legally incapable of giving "consent."
Penalties, Punishment, and Sentencing for Penal Code 288 PC
The penalties for violating California's "lewd acts with a minor" law vary, depending on
1.the age of the child (and possibly the age difference between you and the minor),12
2.the specific facts of the case (for example, did the act involve force or violence?13), and
3.your criminal history.
If prosecutors charge you with California child molestation when the alleged victim is 14 or 15 years old and you are at least ten years older than the minor, the charge is what's known as a wobbler.14 A "wobbler" can be filed as either a misdemeanor or as a felony.
The only true difference between misdemeanor and felony sentencing for a "lewd acts with a minor" charge lays in (1) the fine, and (2) the potential jail/prison sentence.
Misdemeanor child molestation subjects you to a maximum one-year county jail sentence and a maximum $1,000 fine. Felony charges subject you to one to eight years in the state prison and a maximum $10,000 fine.15
Otherwise, you face the following penalties violating any California Penal Code 288 PC "lewd acts with a minor" law:
Penal Code 290 PC registration as a sex offender,16
a requirement that you pay for any medical or psychological treatment that the minor incurs as a result of the offense,17 and
an additional and consecutive five-year state prison sentence if the minor suffers great bodily injury because you use force or violence during the offense ("great bodily injury" is a significant or substantial physical injury).18
It's also important to understand that each independent act of child molestation is a separate offense, punishable as its own violation.19 This means that if, for example, an individual were to fondle one part of the minor's body...and were to then fondle a different part of the minor's body...prosecutors could charge the perpetrator with two acts of "lewd acts with a child."
"Lewd Acts with a Minor" and the Duty to Register as a Sex Offender
As previously stated, one of the penalties for violating Penal Code 288 "lewd acts with a minor" is a lifetime duty to register as a sex offender, pursuant to California Penal Code 290 PC.20 You must comply with this requirement regardless of which subdivision of Penal Code 288 PC prosecutors convict you.
The failure to register as a sex offender under Penal Code 290 PC will subject you to additional misdemeanor penalties as well.21
It must be noted that a judge has no discretion to alleviate you of your duty to register as a sex offender if you are convicted of one of the offenses listed in Penal Code 290(c). However, a skilled California sex crimes defense attorney can often negotiate a reduced charge in a plea bargain that doesn't subject you to sex offender registration...Penal Code 242 "battery,"22 for example.
Penal Code 288 PC and Related Offenses
There are a variety of offenses that are related to Penal Code 288 "child molestation" either because they are
1.frequently charged in connection with a "lewd act with a minor" charge, or
2.are part of a Penal Code 288 PC charge.
Below are examples of some of the most common:
California Penal Code 288.2 PC
Harmful matter sent with the intent of seduction of minor
If you knowingly send or email erotic material to a minor with the intent of arousing yourself or the minor, you may be convicted of Penal Code 288.2 PC.23 An example would include chatting online with a child you believe to be 12 years old, and then emailing him/her a nude photo.
This crime can be punished as a misdemeanor or felony, subjecting you to a county jail or state prison sentence. The law excludes parents or others who act for legitimate scientific or sex education purposes.24
California Penal Code 311 PC
Child pornography laws
California child pornography laws prohibit possessing or distributing materials that depict minors engaging in sexual activity (which includes displaying the genitals).25 If you show a minor these types of materials while engaging in a "lewd act" with that minor, prosecutors could charge you with possessing child pornography and child molestation.
If convicted of a child pornography offense under these circumstances, you may be sentenced to incarceration and substantial fines.26
California Penal Code 288.5 PC
Continuous Sexual Abuse of a Child
This crime involves engaging in three or more "acts of lewd or lascivious conduct" over a period of three months or longer, with a child under 14 years of age. A person convicted of Penal Code 288.5 PC faces between 6 and 16 years of state prison.27
California Penal Code 243.4 PC
Sexual battery
Penal Code 243.4 "sexual battery" prohibits touching the intimate part of another for sexual arousal, gratification, or abuse.28 The difference between this law and Penal Code 288 "lewd acts with a minor" is that "sexual battery" makes no mention of the victim's age.
If the minor was 14 or 15 and less than ten years younger than you or was 16 or 17, this is the offense with which prosecutors would likely charge you. A "sexual battery" charge may be filed as either a misdemeanor or as a felony.29
California Penal Code 207 PC
Kidnapping
If you persuade, entice, or lure a minor to accompany you to a location so that you can engage in a "lewd act" with that child, prosecutors could charge you with kidnapping and child molestation.30 Kidnapping under these circumstances subjects you to a five, eight, or eleven-year state
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